Durban - There is new hope for overseas couples trying to adopt babies after a judge ruled this week that an alleged "stumbling block" - a letter of recommendation from the KwaZulu-Natal head of social development - is no longer required.

International adoptions have ground to a halt in KwaZulu-Natal, and children, many abandoned at birth, have been left languishing in care facilities, because the department has not issued the letters.

These had to be lodged with the Children's Court - the final leg of what adoption agencies say is a thorough vetting process, guided by international law.

In several matters, the desperate prospective adoptive parents have turned to the High Court, asking for intervention and orders compelling the department to issue the letters.

And now, in three separate matters which have come before Durban High Court Judge Themba Sishi, three couples have secured orders which effectively remove the provincial head from the process.

Sishi ruled that the letter of recommendation referred to in the Children’s Act is not a requirement for inter-country adoptions.

Alleged sensitivities around the issue of mainly black babies being adopted by mainly white couples in England and Canada are believed to be the cause of the delays in issuing the letters.

'Procedure is closely regulated'

KwaZulu-Natal head of social development Nokuthula Khanyile has, in previous reports on the issue, denied having any such "issues".

She said: "The procedure is closely regulated by, and prescribed by, the Children's Act and the department intends complying therewith."

In an affidavit filed in a previous matter, she claimed that, in some instances, the biological mother or relatives of the children were alive, but had not been consulted.

"In the matter of an adoption, particularly an inter-country adoption, which would result in a child being taken away from its country of birth and its social and cultural background, there is a possibility of a substantial injustice if the matter is not fully and properly investigated," Khanyile said.

She did not oppose the orders sought in the matters before Judge Sishi.

In one of the matters, a Canadian couple, who want to adopt a two-year-old girl who was abandoned at birth, say they have complied with every legal step and that the letter is the only outstanding issue.

"We are advised that [Khanyile] is not prepared to issue the letter in all inter-country adoptions taking place in the province. The only circumstances where letters have been issued was when she was ordered to do so by court."

Baby abandoned outside police station toilet

They said, in some instances, Children's Court magistrates required the letters, while others did not.

They said they had long wanted to adopt since the death of their only child just after birth.

"We have travelled to South Africa and decided we wanted to grow our family by adopting a child from there."

They said the baby they hoped to take home with them had been abandoned hours after birth outside a toilet at a police station. She was wrapped in a blue floral blanket and was naked and wet because it was raining. She had been in foster care ever since. No-one has claimed her and her biological parents have never been found.

They said they had first made an application in October 2015, and that the director general of social development - South Africa’s designated central authority under the Hague Convention - had issued a certificate of approval in December 2016.

"Once that consent was given, that, we say, is in effect the end of the matter and all that is required is for the Children’s Court to finally determine the matter."

'The way is now clear for them'

The social worker dealing with the adoption said she had tried since October 2015 to find a suitable, local placement for the child, who she said was "healthy, responsive with a ready smile".

But none could be found and "it would be in her best interests to be placed in a suitable, loving home overseas".

She said the couple had joined a support group of parents who had adopted children from South Africa, so she would be surrounded by children who "resemble her racially and have the same national origins".

The final adoption hearing was set down last month, but they were forced to make this week’s application after the magistrate still insisted on a letter from Khanyile.

Their attorney, Mahomed Essack said his clients were elated.

"The way is now clear for them to approach the Children’s Court for the adoption applications to be heard.

"And our understanding is the orders will benefit others in future and anyone else whose applications have been held up for the same reason," he said.

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